C2003/1057, Transcript of Proceedings [2003] AIRCTrans 1030 (24 March 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT10253

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2003/1057

RESTRICTIONS IN TORT

Notice under section 166A of the Act
by Australian Steel Company (Operations)
Pty Limited re action against
Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing
and Allied Services Union of Australia
re the performance of contracts

MELBOURNE

11.05 AM, FRIDAY, 7 MARCH 2003

Continued from 5.3.03 before
Deputy President Hamilton

PN20

MS L. MUMME: I am from Clayton Utz and seek leave to appear on behalf of Smorgon Steel with MR E. BAIN from Smorgon Steel.

PN21

MR J. BELLELI: I seek leave to appear on behalf of Independent Electrical Services as an interested party.

PN22

MR G. BORENSTEIN: I appear on behalf of the CEPU and I don't oppose leave for Ms Mumme. In respect of IES coming here today, if I could reserve my position on whether they should intervene for the moment on the basis that they are not a party to this application.

PN23

MR J. O'SULLIVAN: I appear this morning from Corrs Chambers Westgarth on behalf of our client Tad. We don't currently have instructions to appear in this matter. I am here before you this morning pursuant to the notice of listing issued by his Honour, Deputy President Hamilton's chambers.

PN24

THE COMMISSIONER: Mr O'Sullivan, do you wish to intervene?

PN25

MR O'SULLIVAN: I am in an embarrassing position at the moment, Commissioner, where I don't have instructions.

PN26

THE COMMISSIONER: You don't have instructions. Yes, well, we will note your appearance but at this stage we will just leave it at that.

PN27

MR O'SULLIVAN: If the Commission pleases.

PN28

THE COMMISSIONER: Thank you. Ms Mumme.

PN29

MS MUMME: Thank you, Commissioner. First of all, I would like to thank the Commission for calling this matter on such short notice.

PN30

THE COMMISSIONER: Sorry. Just before you start, my understanding is this is an application under section 166A for the Commission to issue a certificate against the union the CEPU.

PN31

MS MUMME: Yes, Commissioner.

PN32

THE COMMISSIONER: I have been allocated this file because Deputy President Hamilton has been inflicted with influenza and is away on sick leave but I also understand this is not the first occasion it has been before the Commission. It has been here several times. There have been, from what I have been told, assurances given by the union in regard to the picketing activity that is occurring, which essentially are to the effect that the picketing will be peaceful and that the steel company will be allowed to continue its business basically without interruption where picketers advise people going in and out of the premises of their concerns. And my understanding is that, Ms Mumme, you are going to allege that those assurances are not being complied with.

PN33

MS MUMME: That is right, Commissioner. We had - and perhaps for the benefit of the Commission, we had a situation this morning starting at approximately 7 am where a picket of some 80 people was set up outside my client's premises, which obstructed the entrance and exiting of not only Smorgon Steel suppliers and customers but also Smorgon Steel employees. I am instructed that picket lasted for approximately an hour and a half. On that picket line, as I say, there were approximately 80 people. We can't identify all of them. Suffice to say that Dean Mighell, the state secretary of the respondent, was present on the picket line, as was Gerry Glover, an organiser with the ETU.

PN34

Commissioner, on that basis, we say that, given the history of the matter, the certificate should issue. We are well beyond the 72 hour period provided for under section 166A, paragraph (c) and just for the record I would like to express my client's disappointment at the breach of the undertakings that have been given by the respondent on a variety of occasions, including not only on 25 and 26 February but again just the other day, on Wednesday. If the Commission pleases.

PN35

THE COMMISSIONER: Thank you. Just before you sit down, what exactly occurred, in your view, on picket line this morning which has led to this application?

PN36

MS MUMME: The re-listing, Commissioner? The picket - I am instructed that the picket obstructed some 15 or so trucks from entering the site. It also obstructed a number of employees from entering their normal place of work.

PN37

THE COMMISSIONER: Were the trucks able to enter the site and did the employees enter the site?

PN38

MS MUMME: No, not during that period, Commissioner. The employees - some of the employees, I understand, used an alternate entrance. The trucks were lined up on Dohertys Road, so didn't enter the site during that period.

PN39

THE COMMISSIONER: And what was the extent of the period itself? Was it - - -

PN40

MS MUMME: An hour and a half, Commissioner.

PN41

THE COMMISSIONER: An hour and a half?

PN42

MS MUMME: Yes.

PN43

THE COMMISSIONER: And after that time did the trucks enter the site?

PN44

MS MUMME: Yes, Commissioner.

PN45

THE COMMISSIONER: And that is the basis of your submission that assurances have been breached by the union?

PN46

MS MUMME: Yes, Commissioner.

PN47

THE COMMISSIONER: Thanks, Ms Mumme. Do we have any other submissions from Mr Belleli or any of the other parties? None at this stage? Mr Borenstein or Mr Glover.

PN48

MR BORENSTEIN: I would seek to reply - - -

PN49

THE COMMISSIONER: I think we need to go to this issue of assurances and whether or not this morning's activity is in breach of those assurances.

PN50

MR BORENSTEIN: In respect to that particular issue, Commissioner, we would - a meeting did take place on the picket and a number of members from other sites did attend the picket for a meeting this morning. The numbers got so large that the only place where the meeting could take place was in the driveway but at no stage was any trucks told they could not enter. There was an alternative route they were informed of where they could enter, which is the other driveway. It is in Fitzgerald Road. They were told they could enter through that gate and that they would not be stopped. No threats were made to them.

PN51

In their own decision they decided to respect the picket but there was no threats made to them at all that if they entered there would be chaos or any, you know, calling them scabs or anything like that. Employees were free to enter through the driveway and we say if they choose to respect the picket our conduct is lawful and their decision is their own and that is what we kept it. The decision was theirs to make. In respect of the section 166A application, I won't make full submissions in respect of the legal basis whether that can be sought today but in respect of the undertaking and the conduct that has been alleged, that is our reply.

PN52

THE COMMISSIONER: Can you just take me through a little bit of the background of the dispute itself, Mr Borenstein.

PN53

MR BORENSTEIN: There is two contractors, Tad and IES, who provide a number of electricians, approximately about 25 all up, and they have done so for some time, to Smorgon Steel Australia, which is called Australian Steel now, and on that site and that is - I think IES has done that for 10 years and Tad for some time as well. The agreement has expired between the union and Tad and IES, the two labour hire companies, and we have been unable to reach agreement with both IES and Tad and - - -

PN54

THE COMMISSIONER: The major sticking point being the shorter hour week or - - -

PN55

MR BORENSTEIN: That is the major sticking point. That is correct. We have had significant negotiations in front of Deputy President Hamilton since the notice was first filed a couple of weeks ago but - - -

PN56

THE COMMISSIONER: And his persuasive skills haven't resolved the matter.

PN57

MR BORENSTEIN: He did his best but the issue still remains - is the 36 hour week, which - and extensive negotiations have gone around trying to explain that and looking at ways to implement that but it hasn't settled and the union, we submit, has been taking protected industrial action and the employees have been, and a picket has been set up outside the Australian Steel's - and it has been a peaceful picket, we submit.

PN58

THE COMMISSIONER: The picket's intention is to bring to the notice of contractors and the contractor - - -

PN59

MR BORENSTEIN: Contractors, in-house employees, the community about, you know, we are trying to negotiate an agreement with these labour hire companies and they haven't agreed. But we are not - I think the evidence will show that we are not obstructing anyone from entering.

PN60

THE COMMISSIONER: Yes. How many electricians and how many of your members are employed by the labour hire companies?

PN61

MR BORENSTEIN: I think it is approximately 25. I am not 100 per cent sure about that but - - -

PN62

THE COMMISSIONER: And what is the total employment of those labour hire companies?

PN63

MR BORENSTEIN: I think it is around 25. I am not sure if there is non-members. For IES the manager is here.

PN64

THE COMMISSIONER: If somebody else can answer the question I would be happy to hear it.

PN65

MR GLOVER: Tad has 15.

PN66

MR ..........: Thirty electricians and 45 mechanical.

PN67

THE COMMISSIONER: Thirty electricians, okay.

PN68

MR ..........: Seventy-five in total.

PN69

MR GLOVER: And there is 15 with Tad Adecco.

PN70

THE COMMISSIONER: Thank you.

PN71

MR BORENSTEIN: The reason the picket is outside is Australian Steel is, one, that that is where the employees work and work exclusively - - -

PN72

THE COMMISSIONER: Have they withdrawn their labour?

PN73

MR BORENSTEIN: Sorry?

PN74

THE COMMISSIONER: Have your members stopped work?

PN75

MR BORENSTEIN: Our members have stopped work.

PN76

THE COMMISSIONER: They are not working.

PN77

MR BORENSTEIN: Only with Tad and - only with the labour hire companies, not with Smorgon's.

PN78

THE COMMISSIONER: No, no, the labour hire - - -

PN79

MR BORENSTEIN: They have taken protected industrial action and notices have been filed, etcetera. So that is where our members have been working exclusively, who are employed by these labour hire companies at the Australian Steel site - at the Smorgon site.

PN80

THE COMMISSIONER: Have the contractors arranged for other skilled workers to replace your members at those sites or not?

PN81

MR BORENSTEIN: I think some apprentices have been doing some work on those sites but I am not 100 per cent sure about that. So I think the labour hire companies should be able to tell you what has been organised to replace our labour.

PN82

THE COMMISSIONER: And the total employment at Smorgon Steel itself is in the order of?

PN83

MR BAIN: Well, our permanent employees, Commissioner, is about 370, plus contractors, labour hire people, probably another 100, 150.

PN84

MR BORENSTEIN: And another reason why the picket is outside Australian Steel is we feel that Smorgon Steel have a heavy influence on what the labour hire companies will agree to and we - it has been - we submit that they have been - Australian Steel has basically informed the labour hire companies that if they agree to a 36 hour week, then they won't continue on site or words to those effects. So that is the basis. I am not saying that is a fact and - - -

PN85

THE COMMISSIONER: That is your understanding.

PN86

MR BORENSTEIN: That is our understanding and that is just another reason for the Commission's assistance as to why the picket is outside Australian Steel.

PN87

THE COMMISSIONER: Thanks, Mr Borenstein. Well, there seems to be a significant difference in submissions to the Commission in relation to the facts of the matter. The union is alleging that the individuals concerned, who met at Smorgon Steel this morning were engaged in what they considered to be, if I could put it in inverted commas, a peaceful picket where the trucks were not prevented from coming through but, rather, the dispute was explained to them and, having had that explanation, the trucks decided to wait until the meeting was completed. And they are also alleging that there was an alternative entrance to the plant which the trucks could have used. Perhaps I could get some submissions on those propositions, please.

PN88

MS MUMME: Certainly, Commissioner, and I will seek those instructions. Suffice to say that we would submit that the fact that up to an additional 40 CEPU members decided to have a meeting at Smorgon Steel's premises this morning is somewhat inconsistent with the view that this was a peaceful picket. We say that that could be reasonably drawn as an inference that the intention was to disrupt Smorgon's business, which is what happened.

PN89

Leaving that aside for one moment, we say that in line with the Commission's recent - or previous Commission's decisions, ultimately the Commission has to be satisfied that conduct is occurring but just - that conduct is of such a nature that it might reasonably be the subject of an intention to bring tort action. I am happy to put Mr Bain in the witness box to go through what happened this morning. We maintain our position that Smorgon Steel's business was disrupted this morning, that trucks were not able to enter the site. Leaving aside the undertakings that were given, we say that the conduct is clearly of a nature that falls within section 166A and we have been back and forwards in the Commission - I think this is our third or fourth time - and we would seek our certificate today. If the Commission pleases.

PN90

THE COMMISSIONER: Well, Ms Mumme, as there is a dispute on the facts, I think you are going to have to put Mr Bain in the witness box if you are going to take this matter any further.

PN91

MS MUMME: Certainly.

<EVAN THOMAS BAIN, SWORN [11.20am]

<EXAMINATION-IN-CHIEF BY MS MUMME

PN92

MS MUMME: Mr Bain, could you state your full name again for the record?---Evan Thomas Bain.

PN93

And your address?---63 Robert Street, Bentleigh.

PN94

And your position?---I am the human resources manager at Smorgon Steel, otherwise known as the Australian Steel Company.

PN95

Thank you. Mr Bain, can you please explain to the Commission what your understanding of the events as occurred at the Smorgon Steel site this morning?---Yes. I was rang at 6.30 by my security officer, who is - we have Static Security on the gate. He rang me and said that there is a large crowd gathering where the picket line had been and the caravan set up, and I said at this point in time are they attempting to blockade anything and he said no. And at 7 o'clock he rang me and said that the crowd of 80 or so people had moved across the total driveway of the entrance and exit of Smorgon Steel at 105 Dohertys Road and he said: and they are stopping cars, trucks and people from entering the area.

PN96

And can you just take the Commission through what happened subsequent to that, perhaps when you attended site?---Sorry, yes. I attended site 8 o'clock. I, driving in along Dohertys Road, attempted to do a left-hand turn. I was prevented doing so. I hopped out of my - put - stopped the car because I - and in a dangerous position, because I could not enter the site. I am an employee. I could not enter the site. I saw Gerry Glover there. I walked over to Gerry Glover amongst a fair amount of ribbing and said to Mr Glover: what about the undertaking that you gave? And I questioned him - he said I am having a meeting. I questioned him two or three times and with that he said, "Fuck off, Evan." Now, if that is not preventing me from getting into work - now, the police were there. I spoke to the police and told them exactly what - and I had numerous discussions with them on the way to work. Even at a time while I was talking to the police, one of our employees said, "Evan, how do I get in? They won't let me in." And I said, "Well, you have to use - there is another entrance around Fitzgerald Road." She said, "I have no idea where that entrance is." So to say that there is another exit, 80 per cent of the people who were turned away from there had to then go driving around seeking another entrance which they had never used before to get onto the site.

**** EVAN THOMAS BAIN XN MS MUMME

PN97

And, Mr Bain, when you say you were prevented from accessing - - -

PN98

THE COMMISSIONER: Sorry. Can I ask you, Mr Bain - - -?---Yes, certainly.

PN99

There is another entrance, though?---There is a scrap metal entrance. It is an entrance which would be regarded for - used only for scrap metal vehicles to dump scrap into our scrap yard off - and that runs off Fitzgerald Road, quite distinctly different Dohertys Road.

PN100

And what is the physical distance between the entrances?---The physical distance from the access to Dohertys Road to Fitzgerald Road would be probably three quarters of a kilometre and that entrance is purely and simply a truck weighbridge entrance and an exit next to the truck weighbridge. The truck weighbridge entrance has to go over a rise which I would consider extremely dangerous for vehicles who - for private vehicles. See, the problem is on the yard or on the site, the employees have two car parks. One car park is at the front of the building, which they could not access because of the blockade, and to then - and then there is another staff car park which is further down the admin building. Now, for people to have to come in another entrance, have got to go through a whole range of moving traffic and if they haven't been there before it is quite scary because there are mechanical plant dumpers, loaders, trucks unloading scrap because there is - probably it is a 250 to 300 truck movements a day of that. So in an hour and a half it is a conservative estimate that the trucks just could not access. So there was a truck coming up behind me and they moved on because they are blockaded.

PN101

And so you are saying - could the trucks that were described earlier have actually entered through that way you have set out?---Could they? Yes. Yes, they could.

**** EVAN THOMAS BAIN XN MS MUMME

PN102

But you are saying because of the other movements in the yard it wasn't - - -?---Well, but that - that is an exclusive entrance and exit for scrap metal trucks. And that is the use - that is - the use of that is a weighbridge, which they come over the weighbridge, way what scrap, go and dump and then they exit, narrow truck widths, not - it really is not a suitable place for motor vehicles to access the site to park the vehicles.

PN103

Good, thank you.

PN104

MS MUMME: Just have one thing further, Mr Bain. When you say you were prevented from entering the site can you explain why you thought you were prevented from entering the site?---Well, I couldn't drive. No-one would move. I had parked my car and there were - I was confronted with 80 people. Not one of them said anything to me about: This is a picket line and whatever. And I could not move it because they - because they wouldn't move. And that was, as I understand, have been told that was the case from 7 o'clock onwards through to 8.30.

PN105

And, Mr Bain, did you recognise anybody on that picket line?---Certainly. I spoke to Mr Glover who politely told me where to go.

PN106

Anybody else?---Dean Mighell was there. A couple of other organisers, some of our - or some of Tad and Mr Rubenstein's employees.

PN107

Thank you. I have nothing further.

PN108

THE COMMISSIONER: Mr Bain, were you aware, directly, of any threats that were made to truck drivers or to individuals who were seeking to come into the plant?---No. Not aware of any threats or - - -

PN109

But there was - - -?---Not this morning, no.

**** EVAN THOMAS BAIN XN MS MUMME

PN110

There was a physical barrier basically?---Physical barrier of up to, I would suggest, about 80 people some of who I have never seen before in my life.

PN111

Did any truck drivers indicate to you that they had been threatened?---Not this morning, no. Well, I haven't talked to any truck drivers nor was it - that - when they are confronted with a group of people, not being able to move, I don't know - some truck drivers would just drive on.

PN112

Yes?---Talk to - you see, there is a control point for a logistics firm, K and S Freighters, who control all our - all our inwards and - all our out, finished goods and our scrap trucks. Deliveries are usually by three or four companies and they have their bases, they have their two-ways and they speak quite regularly. If they can't get in they go back to base and - - -

PN113

Do you know whether any of the trucks actually returned to their own base?---No, I am not aware of - I am not aware of that this morning, Commissioner. That I can find out for sure.

PN114

And with the delay of an hour and a half - - -?---Yes.

PN115

- - - was there any damage actually suffered by Smorgon Steel as a consequence of that?---I couldn't make an estimate on that, Commissioner. In a - if there were trucks - - -

PN116

It was obviously an inconvenience to everybody concerned?---Absolutely. In a financial penalty I couldn't say, sir.

PN117

Yes, okay. Thanks, Mr Bain. Mr Borenstein, do you want to cross-examine at all?

<CROSS-EXAMINATION BY MR BORENSTEIN [11.28am]

**** EVAN THOMAS BAIN XXN MR BORENSTEIN

PN118

MR BORENSTEIN: Just a few questions, if that is all right, Commissioner.

PN119

Mr Bain, are you aware of any private cars of employees or anything like that from Australian Steel or otherwise using Fitzgerald Road entry in the last, say, four weeks?---No. There is a car park at the Fitzgerald Road entry where they come through the gate and turn left into the car park but there would be very few, if any, cars because it is a truck entrance and exit. Motor vehicles, private vehicles are not to use that entrance.

PN120

Are you sure that no private cars have used - - -?---Oh, I can't - I can't categorically say that not one motor vehicle. The main entrance for all our staff and our factory employees - - -

PN121

I understand that. I understand that?--- - - - is the main gate.

PN122

So would you be aware of whether people are using the Fitzgerald Road - - -?---Would I be aware? Yes. Somebody would tell me because it is unsafe.

PN123

So you, personally, don't keep an eye on it, on that gate?---I personally don't know, but I have - there are countless people who could tell me.

PN124

Who is that?---Well, the weighbridge operator because it has got to go - you have got to go over a weighbridge.

PN125

Yes. And has he - is it part of his job duty to report to you private car - - -?---Not to me, no. Not to me.

PN126

Not to you?---No.

**** EVAN THOMAS BAIN XXN MR BORENSTEIN

PN127

So he reports to someone else?---He is Metalcorp, one of our divisions. He has a general manager who is on site.

PN128

So in the usual course of business the number of cars and trucks that enter through that gate does not come to you, it goes to another division?---That is right.

PN129

Okay. So, really, you wouldn't have any real knowledge of the history of who uses that gate other than what you have been told from other people - - -?---Yeah, I have tried but I go over to that side as well and I have not seen - I, personally, have not seen private vehicles enter and exit our site by that gate. They go into the car park and out of the car park.

PN130

How long have you - how long do you watch at that gate?---Oh, I have been over there - I go over there once a week or so and even, if I may, to go there, I go out the Dohertys Road gate and around because it is common knowledge private vehicles are not to be in the scrap yard. It is an operating area. Private vehicles not allowed to.

PN131

Is there a written policy?---Yes.

PN132

It says that in the written policy?---There is, yes, absolutely, yes. Because it is a work area.

PN133

So what would be your - if people use that - were entering on that gate what would be the result of that?---Breaching - a breaching of policy. They would be spoken to and told that that is not allowed unless you have special permission to do so.

PN134

[11.30am]

**** EVAN THOMAS BAIN XXN MR BORENSTEIN

PN135

Have any trucks ever gone in through the Fitzgerald Road entry?---Trucks?

PN136

Have they ever entered through the Fitzgerald Road entry?---Trucks enter and exit there every day.

PN137

What about other types of trucks?---I have no idea.

PN138

You have no idea?---It is usually a scrap metal entry and exit.

PN139

But you are not sure. Was the road outside the Dohertys Road entrance blocked, the actual road?---The road was Dohertys Road was not blocked.

PN140

So it would have been easy for trucks and/or cars to drive - there was no blockage of them driving to that other entry?---Not easy, but - - -

PN141

How was it not easy?---If you are driving, at that entrance/exit area of Dohertys Road, it is a twin road. It also has a pull off lane for trucks. So the pull off lane for trucks, and that is the - - -

PN142

But in respect of travelling to that gate, there was no blockage?---To travel to the entrance - - -

PN143

Travel to the entrance, yes, the gate entrance?---The road was not blocked at all.

PN144

So in respect of yourself, you are not aware of any employee using the Fitzgerald Road entrance in the last, say, 3 to 4 weeks - you personally?---Am I not aware?

**** EVAN THOMAS BAIN XXN MR BORENSTEIN

PN145

Of any employee?---No, I am not aware of any employee using the Fitzgerald Road gate, other than scrap metal employees who would come in that gate, and can park in the car park, as would the management staff people.

PN146

So either employees of the labour hire companies, nor your company, you are not aware of any person trying to enter through that gate?---Not that I am aware of.

PN147

Do you recall sending a letter alleging that the picket had blocked an employee trying to enter the Fitzgerald Road entrance, and raising that with your solicitors?---Yes - sorry, what area?

PN148

Was that the Fitzgerald Road entry - - -?---I have raised with Ms Mumme several instances of what I considered breaches of - - -

PN149

But as a specific one you raise - I am not sure of the date, it is possibly a week ago?---Yes.

PN150

Of someone trying to enter, and you said he was harassed when he - - -?---Yes, he was. That was - I had a complaint from members, AWU members who work in our scrap yard, of them entering the gate and their car park - not into the - - -

PN151

Which gate was that?---The Fitzgerald Road gate. And I raised that with Ms Mumme, who then followed it up, I understand, with a fax to yourself saying that all our scrap metal employees use that gate.

PN152

But they were driving a car, weren't they?---Yes, but there is a gate and a car park. You see, once you are passed the car park entrance, you are then into an operating area, which you are not allowed to.

**** EVAN THOMAS BAIN XXN MR BORENSTEIN

PN153

I accept that, but I asked you a question whether any of your employees, whether they be from labour hire companies or Australian Steel whatsoever - - -?---Yes, our employees.

PN154

- - - drove private cars - - -?---Yes.

PN155

Not scrap trucks, private cars - - -?---Private cars.

PN156

Into the Fitzgerald gate, and you said no?---Into the - through the gate - - -

PN157

And you said no?--- - - - to go to the car park, yes.

PN158

THE COMMISSIONER: I think the point that is being made here is that there are some employees who used the Fitzgerald Road gate because they work in the scrap area?---That is right.

PN159

And there is a car park immediately beyond the gate which they can enter without going into the operational area. That is the point that I hear being made. Whereas the other people who work in other parts of the plant, if they wish to go to their normal car park, they would have to proceed through an operational area involving trucks, and so forth. That is the point.

PN160

MR BORENSTEIN: Well, I accept that. And I accept the point that as long as it is clear that private cars have used that gate, whether they be for employees who are employed in that area.

PN161

THE COMMISSIONER: I think the substance of what has been put by Mr Bain is that inhibition on people entering in through the Fitzgerald Road gate, who would normally enter through the other gate - - -?---Dohertys Road.

**** EVAN THOMAS BAIN XXN MR BORENSTEIN

PN162

The Dohertys Road gate, is that to get to their normal car park they would have to go through a highly trafficked operational area, and there are safety issues involved, which I am sure everybody in this room would appreciate and not challenge.

PN163

MR BORENSTEIN: Yes, sir.

PN164

In respect of your conduct this morning, you personally, would you say that you were quite aggressive to Mr Glover when you spoke to him?---Absolutely not. I have never been - it is not a part of my nature. I asked Gerry four times, "What about the undertaking that was given in the Commission? What about the undertaking? He said, "We're having a meeting." Somebody said, "Don't talk to him, dah, dah, dah", and then he proceeded to - - -

PN165

How close were you when you were speaking to Gerry?---Probably three feet - what is that, a metre?

PN166

THE COMMISSIONER: A metre.

PN167

MR BORENSTEIN: You didn't walk up into his face?---I sought Gerry out, because I saw him. Because he is the one - you weren't there - he is the one that gave the undertaking. Other people around there that I saw faces of, certainly had not been part of the undertaking. I went to Gerry, because I sought him out, saw him, he was the guy that was part of the undertaking, and I asked him.

PN168

You didn't stand in his face?---No.

PN169

I have no further questions, Commissioner.

**** EVAN THOMAS BAIN XXN MR BORENSTEIN

PN170

THE COMMISSIONER: Thanks. Mr Bain, I don't have any more questions. Do you wish to re-examine at all?

PN171

MS MUMME: Commissioner, just that there have been - and I am not sure if they have been tendered; I think not. There have been three witness statements that have been previously prepared, and I understand handed to the Commission. I don't think they have been marked. They are three witness statements by Evan Bain. The reason for the three, obviously, is that we say that the picket at various times has been more active than others. We would rely on these three statements, which I understand the parties have all been served copies of.

PN172

THE COMMISSIONER: I have one here from Mr Thomas Daffy, Mr Wayne Pearse, Bernard Rubenstein, Evan Bain. Are these the ones you are referring to?

PN173

MS MUMME: Yes. There are actually three from Evan Bain, Commissioner. One is just a statement, one is a supplementary statement, and one is a second supplementary statement, just to confuse us all.

PN174

THE COMMISSIONER: Yes. Are they the ones you want to have marked, and incorporated in the evidence this morning?

PN175

MS MUMME: Yes, please.

EXHIBIT #M1 STATEMENTS OF MR BAIN

PN176

MS MUMME: I don't know if it suits the Commission for me to hand it to Mr Bain to swear to its content, if that is a more appropriate course, Commissioner - only that they have not been identified.

**** EVAN THOMAS BAIN XXN MR BORENSTEIN

PN177

THE COMMISSIONER: Mr Bain, do you - I will take it as they are on the file. They are satisfactorily marked, so we will take it as the statements that have been previously submitted by Mr Bain. Has the union been supplied with copies of those statements?

PN178

MR BORENSTEIN: Yes, Commissioner. In my cross-examination I have limited it to what evidence was just put then.

PN179

THE COMMISSIONER: Yes. Essentially, I think insofar as today's application is concerned - well, I should say it is building on previous behaviour by the union, but it is taking particular account of this morning's events.

PN180

MR BORENSTEIN: Yes, I said that, Commissioner. There is, I suppose, a jurisdictional argument that I would like to put, but I don't think I need to go over this evidence to make that argument.

PN181

THE COMMISSIONER: Not necessarily at this point. But I would like to ask you a few questions, if you have finished, Ms Mumme.

PN182

MS MUMME: Yes, Commissioner. I am just wondering about the witness being excused.

PN183

THE COMMISSIONER: The witness can be excused, certainly.

<THE WITNESS WITHDREW [11.40am]

PN184

THE COMMISSIONER: Now, Mr Borenstein, I take it the union has already given undertakings in regard to this matter, and those undertakings are to the effect that whilst there will be a picket outside Australian Steel, the business of the company will not be interrupted. That is basically what the undertaking is, I understand.

PN185

MR BORENSTEIN: The undertaking is that we won't make threats. There is a latter, I think it says that we will not obstruct or intimidate people from entering. So we were able to say this is our dispute, we ask that you respect the picket, and that is where we leave it.

PN186

THE COMMISSIONER: Yes.

PN187

MR BORENSTEIN: There has been no threats, or anything like that.

PN188

THE COMMISSIONER: Sure, but you will not obstruct?

PN189

MR BORENSTEIN: Yes, Commissioner - well, we would argue that we didn't obstruct, but - - -

PN190

THE COMMISSIONER: Well, you could argue that, but the other side will argue that 80 people standing in a driveway, who are not moving when a truck or a car approaches, is obstruction. And when a representative of the company asks what is happening, and how is this reconciled with the undertaking, is then told to `eff' off, which is not a very constructive reply in the circumstances, I would have thought.

PN191

As you would be aware, section 166A does impose obligations on this Commission in regard to actions such as the one that the union is undertaking, and there are responsibilities on the Commission which are spelt out quite directly in that part of the legislation, to respond to applications where it cannot be seen that conciliation is assisting, or that the action is completed within a certain time.

PN192

Now, this matter has been addressed so far by the union giving undertakings. I must - I have to say to you your explanation that the only place to have a meeting was in the gateway or the driveway of the company is exceptionally thin and I am sure you would understand that. It is a reasonable proposition for you to make but without knowing Dohertys Road and the plant itself it doesn't cut much ice. And can I say - can I look to you and the officers of the union to confirm the undertakings which you have already given that there will be no obstruction of - which affects the business of Smorgon Steel Australian Steel.

PN193

What I propose to do is to adjourn this matter for 30 minutes to allow you to consider what I have just said. I am looking for a clear undertaking of no obstruction in future and that includes holding meetings in the driveway. If that is given I propose to then consider what I should do in relation to the application that has been made. Now, as I say I do propose to adjourn this matter for 30 minutes to allow people to consider their position. Ms Mumme?

PN194

MS MUMME: Commissioner, if I may - and with respect - we have been given undertakings on three occasions now and to be perfectly honest we don't see that the undertakings given have been fulfilled. We don't say this is the first occasion they have been breached either. We would respectfully request that the certificate issue.

PN195

THE COMMISSIONER: Yes. I hear your submission. Thank you for that. That will be taken into account in terms of the decision I will give later on today but at the moment I am looking for the union to give a clear undertaking. But I am doing this in part because this is my first involvement with this matter and Hamilton DP has been undertaking it so far. But what I would also propose to do is to re-list this matter for the middle of next week to get a report back from the parties and in regard to the actions that have been taken by all sides.

PN196

And if there is - look, I think I can say to everybody if this comes back here again with any suggestion of a breach of the undertaking there will be no further request to the union for undertakings. And what the parties can reasonably expect is that if a union or an employer comes before this Commission and gives an undertaking that certain things will be done that undertaking will be honoured and if it is not this whole process will become much more abbreviated in the future than it has been in the past because people rely on those undertakings to give the parties the benefit of whatever flexibility there is in the legislation.

PN197

So what I am proposing is that this matter would be re-listed for some time during next for a report back and if there is any further evidence of meetings in front of gateways or things of that nature that appear reasonably to be in breach of the undertaking well, I don't think there will be any more opportunity for skating around the issue. The matter is adjourned till 12.15.

SHORT ADJOURNMENT [11.45am]

RESUMED [12.20pm]

PN198

THE COMMISSIONER: Good.

PN199

MR GLOVER: The CEPU will give the commitment they will not obstruct the driveway of any trucks and cars from entering.

PN200

THE COMMISSIONER: Thank you. Given that we can assume that that commitment will be honoured do we have a position from the representatives from the company?

PN201

MS MUMME: We do, Commissioner. I personally - and I didn't quite catch what Mr Glover said. I think he said at the driveway - - -

PN202

THE COMMISSIONER: He has given an undertaking that the driveway will not be obstructed to prevent trucks and cars entering.

PN203

MS MUMME: Right. I just seek that that undertaking - it be made very clear that that was in respect of any entrance to any of the Smorgon site.

PN204

THE COMMISSIONER: Is it in respect of all entrances?

PN205

MR GLOVER: Yes, fine. I mean we have got to go round to your scrap yard.

PN206

THE COMMISSIONER: Good. We have clarified that matter. So given that it is in respect of all entrances is that satisfactory? What I am proposing to do also is to re-list this matter for Friday of next week at 2 o'clock to hear a report back from all parties.

PN207

MS MUMME: Yes, Commissioner, that is satisfactory and again for the record I stress that if there is any sense of further conduct by the CEPU in the nature of what has been described or any intimidation or other threats that are made to Smorgon employees or other contractors then we will be seeking a re-listing prior to that time if that could be possibly put on the record as well, Commissioner, because I have some sens of fear if you like that something may happen prior to next Friday. If the Commission pleases.

PN208

THE COMMISSIONER: Good. I will make a statement on the record and the statement will be handed to the parties and the statement is as follows. The CEPU has given a fresh undertaking in regard to the picketing activity which is occurring at Australian Steel. The Commission has taken this into account and makes clear to the union that any further evidence of significant disruption to the operations of the plant will be viewed as a serious breach. A further report hearing in regard to this matter will be scheduled for Friday March 14 at 2 pm or earlier should either party request assistance.

PN209

The Commission encourages the parties to the EBA disputes which are leading to the CEPU activity to make fresh attempts to resolve their differences. And that completes the statement. Unless anyone else has a submission to make I propose to adjourn.

PN210

MR BORENSTEIN: Can I just put on the record that it is the unions position that the picket is lawful and that despite some allegations of unlawfulness that notwithstanding they are allegations that most or nearly all the time has been a very lawful and peaceful picket. And there are a lot - and contractors and employees have been going in and out without harassment and this - - -

PN211

THE COMMISSIONER: It is that little part which goes beyond nearly all the time, Mr Borenstein, that people are concerned about I think.

PN212

MR BORENSTEIN: I understand that is where the argument is going to be but just for the record that if you compare it with other pickets it has been a very, very well contained picket - and run picket - and there is no doubt that employees and trucks and whatever contractors have been going in and out without harassment.

PN213

THE COMMISSIONER: Yes. That is noted, Mr Borenstein, and I think it has been taken into account in the actions of the Commission in this case to date and also today. It is just a bit unfortunate that this morning's activities so far as the company were concerned were in breach of the undertakings that were previously given. Anybody else wish to say anything at this stage? Good.

PN214

As I said in my statement I would encourage the parties that are involved in the EBA discussions to make fresh attempts to resolve their differences because if that can be done obviously all of these things can be concluded. And the Commission obviously, if it is of any assistance to the parties, is available for conciliation and help in trying to resolve those differences. This matter is now adjourned.

ADJOURNED UNTIL FRIDAY, 14 MARCH 2003 [12.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EVAN THOMAS BAIN, SWORN PN92
EXAMINATION-IN-CHIEF BY MS MUMME PN92
CROSS-EXAMINATION BY MR BORENSTEIN PN118
EXHIBIT #M1 STATEMENTS OF MR BAIN PN176
WITNESS WITHDREW PN184